Anthony Tauszik v Gosford City Council

[2006] NSWCCA 193

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Offence under Environmental Planning and Assessment Act 1979 (NSW)
5. › Whether proceedings statute barred
6. › Whether offence fell within first or second limb of s 125(1)
7. › Limitation period under s 127(5) and s 127(6)(a)
8. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1), 125(1), 127(5), 127(6)(a)
1. Local Government Law
2. › Development consent
3. › Environmental planning instrument
4. › Tree preservation order
5. › Whether environmental planning instrument itself provides that development may not be carried out except with consent
6. › Whether clause authorising council to make tree preservation order satisfies s 76A(1)
7. › Gosford Planning Scheme Ordinance, cl 44
8. › Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)
1. Criminal Law
2. › Evidence
3. › Standard of proof
4. › Whether trial judge could be satisfied beyond reasonable doubt on expert evidence expressed in terms of probability rather than certainty
1. Local Government Law
2. › Tree preservation order
3. › Implied rescission
4. › Whether making of new tree preservation order impliedly rescinded earlier order
5. › Whether failure to gazette new order prevented rescission of earlier order
6. › Gosford Planning Scheme Ordinance, cl 44(1), 44(4)

Quick Take

An environmental planning instrument that merely authorises a council to make a tree preservation order does not itself 'provide that specified development may not be carried out except with development consent' within the meaning of s 76A(1) of the EPA Act. The prohibition must be found in the environmental planning instrument itself, not in a tree preservation order made under it. Offences arising from tree preservation orders made under enabling clauses (such as Clause 44 of the GPSO) fall within the second limb of s 125(1), attracting the shorter 6-month limitation period under s 127(5). Councils relying on the 12-month limitation period in s 127(6)(a) must ensure the relevant environmental planning instrument itself contains the prohibition, not merely the power to create one.